Tuesday, July 17, 2018
Page 9
PERSPECTIVES (Column)
A District Court Judge Defies U.S. Supreme Court Precedent
By ROGER M. GRACE
Incredible. Despicable.
A judge of the U.S. District Court for Central District of California, John Frederick Walter, on Saturday ordered the Los Angeles Times to remove from its website information on a plea bargain—an agreement had been made public in error, but nonetheless made public—and to desist from otherwise reporting on it.
Walter acted in blatant derogation of U.S. Supreme Court precedents—cases that first-year law students would recognize as barriers to his action.
If publication of stolen documents, of a classified and sensitive nature—that is, the “Pentagon Papers”—could not be enjoined, how in the world could this judge suppose he would have the power to bar publication of a proposed plea bargain, made public on Friday, in a case in which the defendant has pled guilty?
And why was the Times so timid as to bow to a patently unconstitutional prior restraint?
The Times at 10:55 a.m. on Saturday posted an article on its website reporting on the plea bargain, which had been sealed on Wednesday but revealed Friday on PACER, a publicly accessible database. Craig H. Missakian, an attorney for defendant John Saro Balian (a Glendale police detective who has pled guilty to accepting a bribe, lying to authorities, and obstructing justice) made an ex parte motion Saturday afternoon for an order directed to the Times. What he sought was, in effect, requiring the newspaper to put back in the bag a cat that had been released by the court.
Walter obliged.
The Times was not a party. Did this jurist fanaticize possession of the power to control the reporting by any news outlet in the world on matters in connection with a case in his courtroom?
Walter issued an order enjoining the Times from “[d]isclosing the under seal plea agreement in this case, in whole or in part, or publishing any article, piece, post, or other document whether in print or electronic format that quotes, describes, summarizes, references, relies on, or is derived in any way from the under seal plea agreement in this case and that it return forthwith any and all copies of such plea agreement in its possession to the United States Attorney’s Office for the Central District of California.”
The judge ordered the Times to appear tomorrow morning to show cause why a preliminary injunction should not issue, giving it until noon yesterday to file a brief, under seal, with Balian having until 9 a.m. today to reply. The Times does not get to see the application for an ex parte order filed by Balian.
The order adds:
“To the extent any article is published prior to issuance of this order, it shall be deleted and removed forthwith.”
The Times did not delete the article that was on its website, as ordered, but did, at 5:15 p.m. on Saturday, delete from the article references to what the plea bargain contains.
Its Sunday print edition contained an article on Walter’s action, and did not include the public information it was forbidden to reveal.
When the federal government in 1971 sought to enjoin the New York Times and the Washington Post from publishing information contained in the “Pentagon Papers,” the U.S. Supreme Court said, “no,” affirming a Second Circuit Court of Appeals decision.
Each justice wrote an opinion in the case. Six of them joined in a brief per curiam opinion which, quoting precedent, said:
“ ‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’…The Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’ ”
None of the three dissenting justices challenged the existence of a heavy presumption against the constitutionality of a prior restraint.
The federal government was powerless to block publication of top-secret documents, relating to roots of the war in Vietnam, because the necessary heavy presumption against a prior restraint could not be overcome. And, so, how was that heavy presumption surmounted by Balian?
The order prepared by Missakian, and signed by Walter, recites:
“The Court hereby GRANTS the Application, and finds that Defendant has shown (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the absence of preliminary injunction relief; (3) that the balance of equities tips in his favor; and (4) that preliminary injunctive relief is in the public interest.”
Likelihood?
Yes, Walter based a prior restraint—termed by the U.S. Supreme Court in Stuart v. Nebraska Press Association as “one of the most extraordinary remedies known to our jurisprudence” and “the most serious and the least tolerable infringement on First Amendment rights”— on a mere “likelihood.”
The facts giving rise to the decision in Nebraska Press were that a judge enjoined the press from reporting certain matters concerning a defendant in a murder case. Some of the information he ordered to be concealed had come out at a public preliminary hearing.
Chief Justice Warren Burger added emphasis to the word “could” in reciting the trial court’s finding of “a clear and present danger that pretrial publicity could impinge upon the defendant’s right to a fair trial.”
That, he said, was “speculative.”
Burger quoted Judge Learned Hand as saying in a 1950 Second U.S. Circuit Court of Appeals opinion that “the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” The chief justice came to this conclusion:
“Reasonable minds can have few doubts about the gravity of the evil pretrial publicity can work, but the probability that it would do so here was not demonstrated with the degree of certainty our cases on prior restraint require.”
He did not say “likelihood.”
Whatever the “gravity of the evil” that might be posed by “pretrial publicity” in cases drawing wide news coverage, no trial is presently contemplated in Balian’s case. He pled guilty.
There is, of course, a prospect that the plea bargain will be rejected and Balian will change his plea. That did happen when Judge Percy “Mad Dog” Anderson, of the same court as Walter, bounced an accord reached in the ill-considered prosecution of former Los Angeles County Sheriff Lee Baca. But such actions are rare.
Assume that details of the plea agreement were published by the Times or others, and the case did come to trial. How would that affect Balian? Voir dire ought to eliminate prospective jurors with such keen knowledge of prior events in the case, from news reports, as to be biased. Even if one or more jurors who ought to be have been sent on their way weren’t, is it not improbable that the content of the agreement, whatever is in it, would generate prejudice against Balian beyond the mere fact that, in his earlier plea, he admitted guilt?
So, if we take the “the gravity of the evil, discounted by its improbability,” we come up a potential of harm to Balian of a scintilla above zilch.
Burger also wrote the opinion in the 1979 case of Smith v. Daily Mail Publishing Company. It’s not a leading opinion, and is not itself in point (it deals with punishment for revealing public information), but it does helpfully summarize decisions relating to prior restraint.
“Prior restraints have been accorded the most exacting scrutiny in previous cases,” it recites.
The opinion notes the court’s 1977 decision in Oklahoma Publishing Co. v. District Court, striking down a court order prohibiting the news media from revealing the name of a juvenile defendant—though his name was revealed in a public proceeding attended by reporters—or publishing his photograph, taken as he left the courthouse.
Burger recounts:
“We held that once the truthful information was ‘publicly revealed’ or ‘in the public domain’ the court could not constitutionally restrain its dissemination.”
And here, truthful information as to terms of a plea bargain was publicly revealed on PACER, and thus came into the public domain, and, under the U.S. Supreme Court’s view, Walter “could not constitutionally restrain…dissemination” of that information.
But he did.
The rash, extreme, and constitutionally impermissible action by Walter on Saturday, whether grounded on stupidity or arrogance, was unpardonable.
So was the Los Angeles Times’s acquiescence in Walter’s facially invalid order.
U.S. high court precedent establishes that publication of publicly disclosed matter cannot be published as a contempt.
As matters stood on Saturday, if the Times had yawned at Walter’s order, it would not have been in jeopardy. Yet, it caved in.
It did that in 2010. Los Angeles Superior Court Judge Hilleri Merritt gave it permission to photograph in her courtroom in connection with a case; it photographed, among others, the defendant; after the shots were snapped, the defense lawyer raised the prospect of prejudice if his client’s likeness were published; Merritt then ordered that the Times not publish the photos that had been taken permissibly.
The California Supreme Court held in 1996: “An order of contempt cannot stand if the underlying order is invalid.”
Merritt’s order was patently invalid as Div. Five of this district’s Court of Appeal was to hold, in a quickly released decision.
The Times did manage to contest the order, but was, in my view, derelict in abiding by it until getting clearance from the appeals court.
Tomorrow I’ll have comments on a state Court of Appeal decision by Presiding Justice Elwood Lui of this district’s Div. Two purporting to hide the identities of the parties whose conduct, described in the opinion, had been widely reported in news accounts, using their true names, who openly litigated in the Superior Court, and did not seek anonymity.
Nowadays, all too often, secrecy, in the name of privacy rights, prevails on flimsy bases over common sense and the public’s right to know what’s going on in the public courts.
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